People v. Milani

• Decision Date: 19 January 1968
• Docket Number: No. 38480,38480
• Citation: 39 Ill.2d 22,233 N.E.2d 398
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Joseph H. MILANI, Appellant.
• Court: Illinois Supreme Court

Page 398

233 N.E.2d 398

39 Ill.2d 22

The PEOPLE of the State of Illinois, Appellee, v. Joseph H. MILANI, Appellant.

No. 38480.

Supreme Court of Illinois.

Jan. 19, 1968.

Richard M. Calkins, Chicago, appointed by the court, for appellant.

William G. Clark, Atty. Gen., Springfield, and Kenneth Hubler, State's Atty., Marion (Fred G. Leach, Asst. Atty. Gen., of counsel), for appellee.

UNDERWOOD, Justice.

Defendant, Joseph H. Milani, was adjudged guilty of murder and sentenced to 150 years imprisonment following his guilty plea entered midway in a jury trial in the Williamson County circuit court. Our original affirmance (34 Ill.2d 524, 216 N.E.2d 816) of the Pro se appeal was reversed by the United States Supreme Court (Milani v. State of Illinois, 386 U.S. 12, 87 S.Ct. 874, 17 L.Ed.2d 702) citing Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. In view of the Douglas rule that an indigent is constitutionally entitled to the appointment of counsel in a nondiscretionary appeal, we no longer adhere to our former policy that counsel would not be appointed in appeals from judgments entered upon pleas of guilty and have accordingly appointed counsel to assist defendant in this review.

The defendant alleges here that he was forced to plead guilty during the trial because of the court's 'error' in admitting a post-indictment confession made by him to James Walter Devens, a fellow inmate at the Ft. Leavenworth Penitentiary, whom defendant charges was an 'agent' of the government. The specific questions presented are (1) whether the defendant's constitutional rights were violated under the doctrine of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, (2) whether the State's failure to further a copy of the confession and the name of the witness to the accused before trial violated the statutory requirement (Ill.Rev.Stat.1959, chap. 38, par. 729) that such information be supplied to criminal defendants in certain circumstances and (3) whether the State's inclusion of Devens' name on a supplemental list of its intended witnesses 17 days prior to trial was a trial tactic violative of due process.

The defendant was indicted on September 27, 1960, and was brought before the trial court on January 5, 1961, for arraignment at which time he was served with a copy of the indictment and the public defender was appointed to represent him. Attached to the indictment was a list of 38 witnesses, and defendant was then given an additional list of 36 witnesses to be called by the prosecution. At the request of the public defender the court continued the arraignment so that defendant's attorney could have an opportunity to interview the prosecution witnesses and to become acquainted with the facts of the case. The defendant was returned to the Federal penitentiary at Leavenworth, Kansas, where he remained until his formal arraignment on April 8. On March 27, 1961, the defendant's attorney was served with a third list of State witnesses containing 12 names. At the April 8 arraignment defendant pleaded not guilty and trial was set for May 8. On April 22, 1961, a final list of 3 prosecution witnesses was filed in court and served on defendant's counsel.

Included in this final list was the name of 'J. W. Devens' who had become defendant's confidant at the Ft. Leavenworth Penitentiary because the defendant had requested that Devens assist him in 'some legal matters'. Devens testified that between the 30th and 31st of January, 1961, and the middle of either February or April, the defendant made a series of incriminating statements to him concerning the murder. This testimony recounted the substance of a conversation that occurred at the end of January in which defendant divulged facts relating to the murder with sufficient specificity to amount to a detailed confession of the crime. Devens further testified that on February 2, he gave this information to the Federal Bureau of Investigation. It was revealed on cross-examination of this witness that from the time of his original contact with the Federal authorities, Devens would report back to them each time he and the defendant engaged in a conversation. The witness steadfastly maintained that he acted independently in gathering this information, that he was not instructed by the Federal Bureau of Investigation to elicit further incriminating information from the defendant, and that the Federal agents merely asked him to relate the contents of each conversation when he would contact them.

Briefly stated, the testimony establishes that all of the admissions made by the defendant to Devens occurred after Milani had been indicted, and that the Federal agents were not initially responsible for Devens gaining a confidential relationship with the defendant but were interested in learning what had transpired in each conversation. While the record contravenes defendant's assumption that Devens' testimony included statements made by Milani to Devens subsequent to the latter's initial contact with the Federal Bureau of Investigation, it is largely upon this assumption that defendant urges his major contention that the introduction of Devens' testimony, over objection of defense counsel, violated defendant's constitutional right to the presence of counsel during a post-indictment interrogation under the doctrine of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

Our consideration of Massiah and its progeny has led us to the conclusion that the defendant's constitutional rights were not infringed in this instance. The Massiah case involved an incriminating post-indictment conversation between Massiah and a co-defendant who had agreed to co-operate with customs officials by permitting the installation in his car of a radio transmitter that would enable government agents to overhear the contents of the oral exchange without Massiah's knowledge. The Supreme Court held Massiah was denied the sixth amendment right to assistance of counsel by this procedure 'when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.' (Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1203.) In the instant case there is no evidence of deliberate elicitation from the defendant by Devens of incriminating facts concerning the murder; rather Milani volunteered a confession of his criminal acts to his confidant who was at the time of the initial discussion in no way associated with the investigative authorities. It is appropriate in this regard to note that while the Federal agents were receptive to Devens' periodic reports, the record is devoid of any evidence that they exercised control over the informer or gave him instructions to guide his conduct. We do not believe that Massiah or any later case prohibits the use of volunteered incriminatory statements which are gathered because of the co-operativeness of an informer in whom a criminal has misplaced his confidence, for the Massiah court cautioned, 'We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted.' 377 U.S. at p. 207, 84 S.Ct. at p. 1203.

There is no uniformity in the case law as to the exact meaning of the Massiah opinion. Some Federal courts of appeal read Massiah to establish an exclusionary rule only for incriminating post-indictment statements by defendants which are induced or deliberately elicited by police officers or their agents in the absence of counsel. (United States v. Accardi (2d cir.) 342 F.2d 697; United States v. Gardner (7th cir.) 347 F.2d 405; Stowers v. United States (9th cir.) 351 F.2d 301; United States v. Garcia (2d cir.) 377 F.2d 321.) None of these opinions, however, gives any consideration to the memorandum decision of the United States Supreme Court in McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682, which reversed a decision of the Ohio Supreme Court (State v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349) that attempted to limit the scope of Massiah to statements which are deliberately elicited from an accused by an informer who has agreed to co-operate with the government. (203 N.E.2d at 351.) The United States Supreme Court's reversal of the Ohio court's narrow...